Argued before Boyd, C. J., and Briscoe, Burke, Thomas, Pattison, Urner, and Stockbridge, JJ.

Ogle Marbury, Acting Atty. Gen., and Philip B. Perlman, Asst. Atty. Gen. (Albert C. Rtchie, Atty. Gen., on the brief), for appellants. T. Alan Goldsborough, of Denton, for appellee.

URNER, J. The appellee's son was fatally injured by being thrown against a post as he was driving a wagon loaded with canned tomatoes out of the packing factory of his employer. The only question to be decided on this appepal is whether he was a "casual employee" within the meaning of the Maryland Workmen's Compensation Act, which excepts "casual employees" from its provisions. Code, art. 101, § 63 par. 3.

The injured man, who was a farmer and teamster, had been employed to do hauling for the factory whenever he was needed for that service. His employer testified:

"He was engaged to me early in the canning season to work for me at such times as I might need him, and he promised to help me out at all such times as I might call upon him, and he did so; the day of the accident being the last of the work he had for the season."

To the question, "Was there no separate engagement or contract of hiring for the work he was doing on the day of the accident?" the employer replied:

"Nothing more than just to tell him to come; the same wages paid all the time, always during the season the same wages."

Under this general engagement, the teamster who was injured had been called upon repeatedly for hauling service in the course of the packing season, being paid at the uniform rate of $3 per day when he hauled with his own team, and $1.50 per day when a factory team was used.

The Workmen's Compensation Act of this state does not define the term "casual," as therein used to describe one of the classes of employees to whom the act is not intended to apply. It is a purely relative term, and, in the absence of a statutory definition, its application should be determined in each case according to the particular facts presented. The act defines an "employee" to be:

"A person who is engaged in an extrahazardous employment in the service of an employer carrying on or conducting the same upon the premises or at a plant, or in the course of his employment away from the plant of his employer."

There can be no dispute as to the fact that the appellee's son was an "employee," within the definition of the act, at the time he was injured; but it is contended that his employment was so irregular that it should be characterized as only "casual," within the meaning of the act, and therefore expressly excluded from its operation.

[1] The question whether an employment is casual must be determined with principal reference to the scope and purpose of the hiring, rather than with sole regard to the duration and regularity of the service. One who enters into a contract of employment for an entire season is not a casual employee merely because he may be required to work for only short and irregular periods. When there is a continuing engagement to serve the employer in his business at such times as the particular and essential service may be needed, the employment is not "casual" according to any of the judicial definitions of that term. In this case the service required and rendered was occasional, but it was in pursuance of an engagement covering the whole of the working season at the employer's plant.

In Sabella v. Brazileiro, 86 N. J. Law, 505, 91 Atl. 1032, where a longshoreman was employed at a certain sum per hour to help load a ship, having frequently rendered similar service to the same employer on pre

vious occasions, it was held that the employment was not casual under the New Jersey Employers' Liabilty Act (P. L. 1911, p. 134). It was decided in Boyle v. Mahoney, 92 Conn. 404, 103 Atl. 127, that one who kept machinery and boats in order at an amusement park, whenever called upon for such service was not a casual employee within the meaning of those words as used in the Workmen's Compensation Act of Connecticut. In Jordan v. Weinman 167 Wis. 474, 167 N. W. 810, a boy who was called in at irregular intervals for service in a butcher's shop, when extra help was needed, or in the absence of a regular employee, was held not to be serving under a casual employment within the terms of the Workmen's Compensation Act of Wisconsin (Laws 1911, c. 50). Also in Dyer v. James Black M. & C. Co., 192 Mich. 400, 158 N. W. 959, where a man employed in other work on a building was engaged to assist in unloading glass as it arrived from time to time for use in the same building, it was held that the latter employment was not casual, under the Workmen's Compensation Law of Michigan (Laws 1912 [Ex. Sess.] No. 10), though there was an interval of ten days between the only two occasions when the service was performed. But in Hill v. Begg (1908) 2 K. B. 802, where there was no regular engagement for the service, it was held that the employment of a man at intervals to clean windows was of a "casual nature" under the provisions of the British Workmen's Compensation Act. Likewise in Cheever's Case, 219 Mass. 244, 106 N. E. 861, the employment of a teamster at various times to haul coal from the employer's coalyard was held to be casual under the Workmen's Compensation Act of Massachusetts (Laws 1911, c. 751, amended by Laws 1912, c. 571), and in Gaynor v. Standard Accident Ins. Co., 217 Mass. 86, 104 N. E. 339, L. R. Á. 1916A, 363, a similar conclusion was reached in reference to the employment of a waiter by a caterer to serve at a banquet, the engagement having no relation to any past or future hiring between the same parties. Other cases in which occasional employments were held to be casual, and hence not yet subject to the operation of statutes providing for such exceptions, are Md. Casualty Co. v. Pillsbury, 172 Cal. 748, 158 Pac. 1031; Chicago Great Western R. Co. v. Industrial Commission, 284 Ill. 573, 120 N. E. 508; Thede Bros. v. Industrial Commission, 285 Ill. 483, 121 N. E. 172 McLaughlin v. Industrial Board, 281 Ill. 100, 117 N. E. 819; Aurora Brewing Co. v. Industrial Board, 277 II. 142, 115 N. E. 207; Western Union Tel. Co. v. Hickman, 248 Fed. 899, 161 C. C. A. 17.

[2] The work in which the appellee's son was engaged when he received the injury which caused his death was a necessary part of his employer's business. It was a service rendered under an employment which was not limited to the hauling then in progress, but applied every occurring occasion for such assistance during the whole of one of the annuai productive periods of the employer's enterprise. Upon the facts of the case we agree with the ruling of the court below that the employment was not casual within the meaning of the statutes and that the appellee is entitled to compensation under its terms.

Order affirmed, with costs, and case remanded.

SUPREME JUDICIAL COURT OF MASSACHUSETTS.

SUFFOLK.

EMACH'S CASE.*

1. MASTER AND SERVANT-LENDING MACHINE AND SERVICE-CHANGE OF EMPLOYMENT-PRESUMPTION.

Where person in general employment of contractor assists, with machine or other appliances belonging to contractor, in work of subcontractor or other employer to whom he is lent, he may become, with his consent, servant of the other contractor or special employer, but there is a rebuttable presumption that in management of machine or appliance he remains servant of general employer.

(For other cases, see Master and Servant, Dec. Dig. §§ 361, 403.)

2. MASTER AND SERVANT-WORKMEN'S

COMPENSATION ACT CHANGE IN EMPLOYMENT-FINDING OF INDUSTRIAL ACCIDENT BOARD EVIDENCE.

In proceedings for compensation for death of engineer of locomotive crane lent by contractor to subcontractor, finding of Industrial Accident Board that engineer did not become servant of subcontractor in care and management of crane, but in such respect remained employee of contractor, held supported by evidence.

(For other cases, see Master and Servant, Dec. Dig. § 405[2].)

3. MASTER AND SERVANT-WORKMEN'S

COMPENSATION

ACT-REVIEW - FINDING OF INDUSTRIAL ACCIDENT BOARD.

Where there was evidence to support finding of Industrial Accident Board on a question of fact, such as whether engineer of locomtive crane lent by contractor to subcontractor became servant of latter in respect to management of crane Supreme Judicial Court cannot set finding aside. (For other cases, see Master and Servant, Dec. Dig. § 417[7].)

Appeal from Superior Court, Suffolk County.

Proceeding under the Workmen's Compensation Act by Mabel B. Emach for compensation for the death of Albert M. Emach, the employee, against the Aberthaw Construction Company and the Holbrook, Cabot & Rollins Corporation, as employers, and the Contractors' Mutual Liability Insurance Company and the Travelers' Insurance Company, as insurers. Compensation was awarded against the Contractors' Mutual Liability Insurance Company, and denied as against the Travelers' Insurance Company, and from the decree of the superior court ordering payment by the Contractors' Mutual Liability Insurance Company, and dismissing the claim against the Travelers' Insurance Company, the claimant and the Contractor's Mutual Liability Insurance Company appeal. Affirmed.

Peter F. McCarty, of Boston, for appellant Emach.

Norman F. Hesseltine, J. Frank Scannell and J. Waldo Bond, all of Boston, for appellant Contractors' Mutual Liability Ins. Co.

Walter I. Badger and Louis C. Doyle, both of Boston, for appellee Travelers' Ins. Co.

CARROLL, J. Albert Emach, employed by the Aberthaw Construction Company as the engineer in charge of a locomotive crane, received a fatal *Decision rendered, April 17, 1919. 123 N. E. Rep. 86.

injury. Holbrook, Cabot & Rollins Corporation, a subcontractor, on March 13, 1918, wrote to the Aberthaw Company stating that it required a locomotive crane to act "as auxiliary to our derricks, also to provide motive power for getting piles from the pile yard out to the wharf. We understood from Mr. Garrod that the crane would be forthcoming and could be held absolutely at our disposal for the continuance of our work." On the following day the supervisor of the Aberthaw Company replied, saying that the company "has furnished you at Squantum this morning, March 14, 1918, with one locomotive crane equipped with a 50-foot boom, and one standard flat car. ** * Please note that the Aberthaw Construction Company will furnish the engineer and fireman on the locomotive crane throughout its work for you."

The following Sunday morning (March 17, 1918) Green, a rigger employed by Holbrook, Cabot & Rollins, ordered Emach to go to the dock and hoist an engine from the deck of a lighter to a flat car. The crane was run down to the dock, employees of the subcontractor adjusted the chains about the engine and connected them with the hoisting tackle of the crane. The crane was equipped with jacks to support the platform when lifting, and clamps to fasten the crane to the rail. Neither the jacks nor clamps were in use when the employee was killed. Before attempting to hoist the engine, Emach's firemen asked Green its weight, to which Green replied, "From 4% to 5 tons." The fireman then said, "you think that is a 30-foot radius?" and Green answered, "Yes." The fireman then looked at the guideplate on the crane and saw that with a 30-foot radius the crane could lift 11,500 pounds. After this conversation, Green gave Emach the signal to hoist the engine. As soon as the crane started it became unbalanced by the heavy burden and turned over on its side, so severely scalding Emach that he died in a few hours.

Both the Aberthaw Company and the Holbrook Company were insured under the Workmen's Compensation Act. (St. 1911, c. 751, as amended by St. 1912, c. 571.) The Industrial Accident Board awarded compensation against the insurer of the Aberthaw Construction Company in favor of Mrs. Emach, the employee's widow. She appealed, in order to protect her rights against the Holbrook, Cabot & Rollins Corporation, in case it should be found that the Industrial Accident Board was in error. The insurer of the Aberthaw Company also appealed.

[1] Where a person in the general employment of a contractor assists with a machine or other appliance belonging to the contractor, in the work of an employer to whom the servant is lent, the person so lent may become, with his consent, the servant of the special employer. But in such a case it will be presumed that in the management of the machine or appliance the employee in charge remains the servant of the general employer and does not become the servant of the special employer. Driscoll v. Towle, 181 Mass. 416, 63 N. E. 922; Shepard v. Jacobs, 204 Mass. 110, 90 N. E. 392, 26 L. R. A. (N. S.) 442, 134 Am. St. Rep. 648; Pigeon's Case, 216 Mass. 51, 102 N. E. 932, Ann. Cas. 1915A, 737; Peach v. Bruno, 224 Mass. 447, 113 N. E. 279; Clancy's Case, 228 Mass. 316, 117 N. E. 347; Scribner's Case, 231 Mass. 132, 120 N. E. 350.

This presumption, however, may be overcome by evidence to the contrary; and the facts may be such as to warrant the finding that the owner of the machine has so far surrendered the right of control that even in this particular the person in charge of the machine has become the servant of the special employer. See in this connection Scribner's Case, supra; Cain v. Hugh Nawn Contracting Co., 202 Mass. 237, 88 N. E. 842.

[2, 3] In the case at bar there was evidence upon which the Industrial Accident Board could have found that Emach, in the operation and management of the locomotive crane, became the employee of the Holbrook, Cabot & Rollins Corporation. The correspondence between the two corporations indicates that the crane was to be at the disposal of the Holbrook, Cabot & Rollins Corporation. There was evidence that, when Emach and

his fireman started the work for the Holbrook Company, they were informed by the master mechanic of the Aberthaw Company "to do absolutely as they were told by the subcontractor," and that they made no objection to this direction. But the Industrial Accident Board was called upon to decide a question of fact; and it might well have found that, even if Emach was temporarily in the employment of the Holbrook, Cabot & Rollins Corporation, in the care and operation of the crane he remained the employee of the Aberthaw Company. It could have found that the crane was a complicated machine, requiring experience and skill in its operation; that Emach was an experienced engineer and that the control was left entirely to him, with no direction for its management given by the Holbrook Company. It does not appear that any one employed by the subcontractor understood how to operate the crane, and the master inecnanic of the Aberthaw Company testified that "Mr. Emach was sup posed to know what the crane would lift on a certain job, and it was left to Mr. Emach to use his judgment as to how much he should ift. !f Mr. Emach was told to lift a greater load than the crane would stand, he would be supposed to say that the crane would not stand it," and "for the protection of the crane as property of the Aberthaw Company * was expected to do only work which would not endanger the crane.” On this evidence the board found that Emach did not become the servant of the Holbrook, Cabot & Rollins Corporation in the care and management of the locomotive crane, but in this respect remained the employee of the general employer. We cannot say that this finding was wrong The question was one of fact; there was evidence to support the finding, and we cannot set it aside.

Decree affirmed.

SUPREME JUDICIAL COURT OF MASSACHUSETTS.
SUFFOLK.

MCCARTHY'S CASE.

IN RE TOWN OF DANVERS.

IN RE EMPLOYERS' LIABILITY ASSUR. CORPORATION, LIMITED.*

1. MASTER AND SERVANT-WORKMEN'S COMPENSATION ACT-OPPORTUNITY TO ESCAPE INJURY-SUFFICIENCY OF EVIDENCE.

Finding of Industrial Accident Board that employee, who suffered sunstroke, had no opportunity to escape effects of exposure to heat before he collapsed, held warranted by evidence.

(For other cases, see Master and Servant, Dec. Dig. § 405[4].)

2. MASTER AND SERVANT-WORKMEN'S COMPENSATION ACT "ARISING OUT OF EMPLOYMENT"-SUNSTROKE. Where town's employee, who worked in gravel pit, suffered a sunstroke, injury arose out of his employment, which exposed him to danger of sunstroke, an injury naturally connected and reasonably incident to em*Decision rendered, April 11, 1919. 123 N. E. Rep. 87.